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Established in 1985, the Workplace Safety and Insurance Appeals Tribunal (WSIAT) is the final level of appeal to which workers and employers may bring disputes concerning workplace safety and insurance matters in Ontario. WSIAT has always been separate from and independent of the Workplace Safety and Insurance Board.

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  Decision 1118 12
7/17/2013
S. Darvish - M. Trudeau - R. Briggs

  • Available employment (crossing picket line)
  • Board Directives and Guidelines (LOE) (lay-off)
  • Loss of earnings {LOE} (lay-off) (strike)

The worker suffered a compensable injury in 2004, for which he was granted a 20% NEL award. He returned to permanent modified work at no wage loss. The worker appealed a decision of the Appeals Resolution Officer denying the worker LOE benefits after June 2009, during a plant shutdown and subsequent strike. Board policy provides, generally, that the Board may provide a worker who is unable to continue working due to a work disruption, and whose employability is affected by the work-related impairment, with additional LOE benefits. The general rule is that, during a work disruption of short duration, the worker's benefit status is maintained, unless the worker's employability is clearly affected by the work-related impairment. The Panel found that the worker was not entitled to additional LOE benefits during the plant shutdown. He was not receiving LOE benefits at the time and his employability was not affected by his permanent impairment. Factors affecting employability are: the worker is in the early phase of recovery; the worker is still receiving active health care treatment; the worker is on a graduated return to work program; the worker requires a high degree of accommodation; the worker's impairment clearly presents an obstacle to finding alternate employment. None of those factors applied in this case. After the shutdown of the plant for two weeks, the strike began. The employer submitted that the worker was not entitled to LOE benefits during the strike because his loss of earnings was not related to his compensable injury but, rather, was related to his decision not to accept suitable modified work offered by the employer because he did not want to cross the picket line. The employer submitted that the Board policy on strikes was, therefore, not applicable because if refers to a worker who is unable to continue working due to a strike and that, accordingly, entitlement should be based only on s. 43 of the WSIA. The Panel was of the view that s. 43 operates in conjunction with the Board policy. The policy contemplates the condition precedent in s. 43 that the loss of earnings result from the injury. To make that determination in this case, there must be a determination of whether there was suitable modified work available. Similarly, under the policy, there must be a determination of whether the worker was unable to continue working due to a strike. This requires an analysis similar to that under s. 43. The Panel found that the phrase in the policy "unable to continue working due to a strike" can include a situation in which the employer offers suitable work but the worker chooses not to cross the picket line. If the worker chooses not to cross the picket line, the worker can still be unable to continue working due to a strike. However, the inability to continue working would be the result of the personal choice not to cross the picket line and not the result of the work-related injury. Also, it could be determined that the job is not available because the worker cannot cross the picket line due to repercussions or penalties. In this case, the Panel concluded that the modified work offered by the employer was suitable and available to the worker during the strike. There was evidence that other employees were crossing the picket line without any problems. Further, the worker did not contact the employer to discuss safety concerns. The Panel found that the worker did not have genuine concerns about crossing the picket line. He made a personal choice not the cross the picket line in order to preserve union solidarity. The worker was not entitled to LOE benefits during the strike. The appeal was dismissed.